COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Bumgardner 

Argued at Salem, Virginia 

DONALD GLENN BERNARD 

 MEMORANDUM OPINION* BY 

v. Record No. 1608-98-3 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 2, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge 

 Charles C. Cosby, Jr. (Henry G. Crider, on 

brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 The trial judge convicted Donald Glenn Bernard of aggravated 

sexual battery. Bernard contends that, following the conviction, 

he met his burden of proving after-discovered evidence and that 

the trial judge erred in denying his motion to set aside the 

verdict. We affirm the judgment. 

I. 

 Wendy Earles testified that in 1996 she had a romantic 

relationship with Donald Glenn Bernard. On June 1 of that year, 

Bernard and his son, who was eleven years of age, spent the night 

in Earles' residence, a two bedroom trailer. Also present were 
Earles, her eleven-year-old daughter, her ten-year-old son, and 

another eight-year-old child. Earles testified that her daughter 

reported to her the following morning that Bernard touched her 

during the night. 

 Earles' daughter testified that she, her brother, and 

Bernard's son fell asleep in the living room. She slept on the 

floor; her brother slept on a sofa; and Bernard's son slept on a 

chair. She testified that during the night she was awakened by 

her mother's bedroom door, which squeaked when opened. She then 

heard the sound of footsteps in the kitchen, in the living room 

passing by her, and then in the bathroom. After she heard the 

toilet flush, she saw Bernard, illuminated by a nightlight, coming 

from the bathroom. Seeing that he was naked, she put her head 

under the cover. 

 Earles' daughter testified that after she put her head under 

the cover, she felt large, rough, cold hands under her clothing 

and touching her vagina. She testified that she "moved and acted 

like [she] was having a dream or . . . felt something and then 

they stopped." She then heard footsteps going toward her mother's 

bedroom and heard the door close. She noticed that her brother 

was still asleep on the sofa and that Bernard's son was still on 

the chair. She then went to sleep. In the morning, she reported 

to her mother that Bernard had touched her vagina during the 

night. 

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 On cross-examination, she could not recall testifying at the 

preliminary hearing that she did not hear anything before being 

touched. She did recall earlier testifying that she only saw the 

back of the person who entered the room. She also recalled her 

earlier testimony that she was touched five or six seconds after 

she heard footsteps. 

 Earles' son testified that on the night of June 1, he slept 

on the sofa in the living room and Bernard's son slept on a chair 

in the same room. He thought his sister slept in another bedroom. 

Earles slept in her bedroom with Bernard. He also recalled being 

awakened by the squeaking noise of his mother's bedroom door 

opening. After he saw the person walk from the bedroom to the 

kitchen, he went back to sleep. 

 A police investigator testified that when he questioned 

Bernard fifteen months after that night, Bernard said he and 

Earles got up during the night because he heard Earles' daughter 

"fussing." Bernard said he and Earles "went into the living room 

and [Earles' daughter] made an accusation that someone was messing 

with her." Bernard told the officer that Earles later said 

"someone was messing with [Earles' daughter's] vagina." Bernard 

denied that he touched Earles' daughter and told the officer that 

after Earles' daughter spoke with Earles, Earles' daughter told 

Bernard that Bernard's son touched her. According to Bernard, his 

son denied touching Earles' daughter and said Earles' son touched 

her. 

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 After the trial judge denied Bernard's motion to strike the 

Commonwealth's evidence, Bernard's son testified that he was 

awakened the night of June 1 by Bernard, who told him that Earles' 

daughter had accused Bernard's son of "messing with her." He also 

testified that Earles made the accusation to him the next day. He 

testified that he heard no one accuse his father of touching 

Earles' daughter. Bernard presented no other witnesses. 

 At the conclusion of the evidence, the trial judge found that 

Earles' daughter was credible. He ruled that she had been 

molested and that the evidence proved Bernard was the perpetrator. 

Thus, the trial judge convicted Bernard of aggravated sexual 

battery in violation of Code § 18.2-67.3. 

 A month after the trial judge sentenced Bernard, Bernard 

filed a motion for a new trial. The motion alleged 

after-discovered evidence, including Bernard's son's admission, 

after Bernard's sentencing, that he had touched Earles' daughter. 

At a hearing on the motion, Bernard's son testified that he had 

always denied touching Earles' daughter prior to Bernard's 

conviction. He said that Bernard's lawyer asked him prior to the 

verdict whether he had touched Earles' daughter and that he denied 

having done so. He said, after Bernard's conviction and after 

Bernard had been released from jail on an appeal bond, he told 

Bernard that he had touched Earles' daughter. He further 

testified that while Earles' daughter was asleep he "touched the 

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corner of her vagina . . . [b]ecause her brother was doing it." 

Bernard's son then testified as follows on redirect examination: 

Q: When was . . . the first time you 

actually told your dad . . . that you had 

done this? 

A: At the dumpster. 

Q: When was that in time? Was that before 

or after he had been in jail? 

A: Before. 

* * * * * * * 

[JUDGE]: You just testified . . . that you 

told him the first time before he went to 

jail at the dumpster. 

A: That was back when it first happened. 

[JUDGE]: Okay, so you told him back when it 

first happened that you had done it? 

A: Uh, huh. 

 Bernard testified that the son's testimony was inaccurate 

in one detail. Bernard testified he talked with his son at the 

dumpster the morning after Earles' daughter made the accusation. 

His son asked him not to tell other people "that he was accused, 

. . . not that he had done it. He always said that he did not 

do it until recently." Bernard testified that after he was 

released from jail, his son first admitted that he touched 

Earles' daughter. He said before that occasion his son had 

denied touching her four or five times. 

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II. 

 The following well established principles govern motions 

for new trials: 

 Motions for new trials based on 

after-discovered evidence are addressed to 

the sound discretion of the trial judge, are 

not looked upon with favor, are considered 

with special care and caution, and are 

awarded with great reluctance. The 

applicant bears the burden to establish that 

the evidence (1) appears to have been 

discovered subsequent to the trial; (2) 

could not have been secured for use at the 

trial in the exercise of reasonable 

diligence by the movant; (3) is not merely 

cumulative, corroborate or collateral; and 

(4) is material, and such as should produce 

opposite results on the merits at another 

trial. 

Odum v. Commonwealth, 225 Va. 123, 130, 301 S.E.2d 145, 149 

(1983) (citation omitted). 

 The trial judge ruled that the evidence did not prove the 

fourth factor and denied the motion. In so ruling the trial 

judge "[found] the evidence . . . not very credible." The trial 

judge was not satisfied that the evidence was not "collusive" 

and that it would produce the opposite result on retrial. In 

Odum, the Supreme Court noted that "while the evidence, if 

believed, was material, the trial [judge], assessing the 

credibility of defendant's witnesses both at trial and at the 

motion hearing, properly could find that it was not such as 

should produce opposite results on the merits at another trial." 

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225 Va. at 131, 301 S.E.2d at 149. We believe that principle is 

determinative in this case. 

 The evidence at trial proved that Bernard told the police 

he and Earles went to the living room during the night because 

Earles' daughter was "fussing." Neither Earles nor her daughter 

testified to that fact, however. Bernard also told the police 

that Earles' daughter accused his son of touching her. Earles' 

daughter and Earles specifically denied that Earles' daughter 

had accused Bernard's son of touching her. Bernard further told 

the police that he confronted his son about touching Earles' 

daughter, that his son denied touching Earles' daughter, and 

that his son said Earles' son had touched her. All this 

evidence had been placed in the record when Bernard's son 

testified at trial. 

 Bernard's son was not asked at trial whether he touched 

Earles' daughter, and he did not testify that he did. He also 

did not testify at trial that Earles' son touched her. 

Bernard's son testified at trial that Bernard woke him in the 

middle of the night and accused him of molesting Earles' 

daughter. That testimony was inconsistent with the testimony of 

Earles and Earles' daughter. 

 When Bernard's son testified at the hearing on the motion 

for a new trial, the trial judge had the opportunity to assess 

his credibility and to assess it within the context of his 

earlier trial testimony. Thus, the trial judge could consider 

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his demeanor and manner of testifying. He could consider his 

failure to testify at trial that Earles' son touched the girl. 

In addition, he could consider how the testimony was 

inconsistent with the testimony of Earles and Earles' daughter. 

"More importantly, the trial [judge] was justified in concluding 

that [the same result would occur on retrial] because of the 

positive, credible, largely unimpeached identification of 

defendant" as the person in the room when Earles' daughter was 

touched. Odum, 225 Va. at 131, 301 S.E.2d at 149. Earles' 

daughter testified that she was awake when she was touched, that 

Bernard was in the room when she was touched, that the hands 

were large and rough, and that her brother and Bernard's son 

were asleep on the sofa and chair after she was touched and as 

Bernard walked away. 

 For these reasons, we hold that the trial judge did not 

abuse his discretion in refusing the motion for a new trial. 

Accordingly, we affirm the judgment. 

 Affirmed. 

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